Phillips v. Drummond

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JAMES MICHAEL PHILLIPS, Petitioner, v. GENTNER DRUMMOND, Attorney General of the State of Oklahoma,^[1] Respondent.

No. 21-CV-0211-GKF-JFJ

United States District Court, N.D. Oklahoma

July 11, 2024

OPINION AND ORDER

GREGORY K. FRIZZELL UNITED STATES DISTRICT JUDGE

Petitioner James Michael Phillips, a self-represented prisoner, seeks federal habeas relief, under 28 U.S.C. § 2254, claiming the criminal judgment entered against him in Tulsa County District Court Case No. CF-2015-4655 was obtained in violation of his federal right to due process because the State of Oklahoma “introduced and subsequently used [his] post-Miranda^[2] custodial silence at trial.” Dkt. 1, at 9. Having considered the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Dkt. 1), the Response in Opposition to the Petition (Dkt. 5), the Reply to the Response to the Petition (Dkt. 12), the record of state court proceedings (Dkts. 5, 6, 7), and applicable law, the Court finds and concludes that the Petition shall be denied.

I. BACKGROUND

Phillips was convicted by a jury in 2019 of robbery with a firearm, in violation of Okla. Stat. tit. 21, § 801, and was sentenced to twenty-three years of imprisonment. Dkt. 1, at 1; Dkt. 5 4, at 1.^[3] The Oklahoma Court of Criminal Appeals (“OCCA”) described the facts surrounding the robbery as follows:

[Petitioner] was convicted of robbing a cell-phone store in Tulsa. The assailant entered the store just before closing brandished a firearm, threatened the only employee on duty, demanded cash and electronics, took personal information about the victim and her family, and tied up the victim before fleeing. A few weeks later, [Petitioner] was apprehended in an attempted armed robbery of a cell-phone store near Wichita, Kansas. The firearm and other paraphernalia in his possession at that time were very similar to the items used in the Tulsa robbery. [Petitioner] also had in his possession a cell phone containing video surveillance of the Tulsa store, taken a few days before and also hours before the Tulsa robbery. The victim of the Tulsa robbery positively identified [Petitioner] as the man who robbed her. At trial, [Petitioner] represented himself and testified on his own behalf. He admitted the Kansas robbery attempt, but claimed his cousin committed the Tulsa robbery.

Dkt. 5-4, at 3.^[4]

Phillips was apprehended and arrested on August 11, 2015, following his attempted armed robbery of an AT&T store in Derby, Kansas. Dkt. 5-5, at 46-47. A local detective read Phillips his Miranda rights, which Phillips chose to waive, and interrogated Phillips regarding the Derby robbery. Id. at 55-56. The following day, a detective from Tulsa, Detective Ryden, drove to Derby to speak with Phillips regarding the Tulsa robbery that occurred three weeks prior. Id. at 77-78. At trial, Detective Ryden testified that he “explained the facts of the Tulsa case” to Phillips, “and [Phillips] declined to make a statement at that point.” Id. at 78. The detective's testimony does not reveal whether Phillips received Miranda warnings during this encounter.

Phillips testified at trial that his cousin Antwan Brown committed the Tulsa robbery. The prosecution sought to impeach this testimony during cross-examination and closing argument by suggesting Phillips would have informed police of this information earlier, were it true. During cross-examination, the following colloquy occurred:

Q. So when you found out that you were wrongfully accused, you went straight to the police officers and told you [sic], Look, I might have done this, but I didn't do that, you got to know this is the guy who committed the Tulsa robbery, right?

A. No, sir, I didn't. I've never went to the police. I didn't ever give a statement.

Q. Surely, an innocent man, you went to the media or anyone who would listen to you, right?

A. I never went to the media, no, sir. Do you have something to show that?

Q. But you're an innocent man, right, Mr. Phillips?

A. Yes.

Q. Isn't that what you're saying?

A. I am innocent of this Tulsa case.

Q. Detective Ryden drove all the way from Tulsa to Derby just to talk to you; isn't that correct?

A. I'm not sure what his purpose was, but he did drive all the way up there. I believe he testified that he wanted to visit the scene and all the other stuff, so-but he did come up there to talk to me, yes, sir.

Q. And you, the innocent man, you told him it was Antwan Brown, right?

A. Of course I didn't. No, I did not. I invoked my right to remain silent.

Dkt. 5-5, at 106-07.

During closing arguments, the prosecution stated that Phillips “never said anything about Antwan until Monday of this week.” Id. at 110. The prosecution further stated:

Now, . . . I'd like to point out that every single opportunity he had to try to present evidence that he was innocent, he passed up until the week of trial [H]e throws some Antwan Brown out the week of trial, and he blames us for not investigating that.

So after being contacted by Ms. Burks, [Detective Ryden] drives all the way up to Derby, Kansas, about a three-hour drive. And he wants to meet with Mr. Phillips and tell about his case, see if he can help him out, provide any leads. And, of course, at the time, Mr. Phillips said, Oh, Tulsa, no, no, no, that was Antwan; you need to look at Antwan. Of course he didn't say that. He said nothing.

Do you remember when he said that he never told police about this Antwan Brown because he's not a snitch, he's not prosecution witness? Yet he waited this entire time, and to come up with this story, this never-before-told story the week of trial, and then when he could have presented evidence to say, hey, this Antwan Brown is an actual person, don't you think we look similar? Hey, members of the jury, this Antwan Brown really exists. We could have gotten confused. He didn't do that because he's the person. He's the one that did it and he knows it, and he's trying to spin this magical tale of some Antwan Brown character that, according to him, exists.

Id. at 112-15.

Phillips directly appealed his judgment and sentence to the OCCA, arguing, in part, that the prosecutor's use of post-Miranda silence for impeachment purposes violated his due process rights. Dkt. 5-1, at 12-17. The OCCA affirmed Phillips's judgment and sentence in a summary opinion on April 23, 2020. Dkt. 15-4. Phillips now seeks federal habeas relief on his claim.

II. LEGAL STANDARD

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (citations and internal quotation marks omitted). When a claim has been “adjudicated on the merits in State court proceedings,” federal habeas relief may be granted under the AEDPA only if the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2).

Clearly established federal law “refers to the holdings, as opposed to the dicta, of the [Supreme] Court's decisions as of the time of the relevant state-court decision.” Dodd v. Trammell, 753 F.3d 971, 982 (10th Cir. 2013) (alteration and internal quotation marks omitted). A statecourt decision is “contrary to” clearly established federal law if the conclusion is “opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.” Id. (alterations and internal quotation marks omitted). A state-court decision involves an “unreasonable application” of clearly established federal law if the “state court identifies the correct governing legal principle from the [Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (alteration and internal quotation marks omitted). “[A]n unreasonable application of federal law is different from an incorrect application of federal law. Indeed, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Renico, 559 U.S. at 773 (citations and internal quotation marks omitted) (emphasis in original).

III. DISCUSSION

In his sole ground for federal habeas relief, Phillips argues that his due process rights were violated when the prosecution impeached him during cross-examination and closing arguments with his post-Miranda silence. Dkt. 1, at 9. In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court held that “the use for impeachment purposes of [a defendant's] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” Doyle, 426 U.S. at 619. This principle “rests on ‘the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial.'” Wainwright v. Greenfield, 474 U.S. 284, 291 (1986) (quoting South Dakota v. Neville, 459 U.S. 553, 565 (1983)). Because this “implicit assurance” is predicated on “the right-to-remain-silent component of Miranda,” due process “does not prohibit the use for impeachment purposes of a defendant's silence prior to arrest, or after arrest if no Miranda warnings are given.” Brecht v. Abrahamson, 507 U.S. 619, 628 (1993) (citations omitted) (explaining ...